Gonzi & 5 others v Kenya Shipping Clearing Freight Logistics Warehouses Workers Union & another (Cause 6 of 2020) [2022] KEELRC 1366 (KLR)

There was no dispute that the claimants were members of the union and directly affected by the allegations. They had a sufficient interest in the application of union funds and governance. Their suit was an actualisation of the constitutional right under article 41(2)(c) to participate in trade union activities and the statutory rights under section 4 of the Labour Relations Act. The court applied the Alfred Njau definition of locus standi.

Section 21 of the Labour Relations Act confers on a registered trade union perpetual succession and capacity to sue and be sued. The union was bound by article 10(2) national values in its internal governance. The evidence established that no NEC or AGM meetings were held as the constitution required and audited accounts were not rendered, so the order to render accounts would issue against the union as a body corporate, not against the Secretary General who was not a party.

The failures identified fell squarely on the union and no person was alleged culpable as envisaged in section 47 of the Act. Mandamus issues only where a public body required to perform a duty has refused; section 47(2) confers a discretion, not a duty. The claimants themselves could make the complaint under section 47(1), which operates as a bar to mandamus.

The parties did not address the point but the court held that the claimants were entitled to seek mandamus in an ordinary suit. Rule 7(3) allows a party to seek enforcement of constitutional rights and freedoms in a statement of claim, and the definition of 'suit' in the rules includes claims, petitions and applications for judicial review, saving the mixed suit.